Securing the Blessings of Liberty

In his book The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, Timothy Sandefur, an attorney at the Pacific Legal Foundation and a Cato Institute adjunct scholar, argues that “the primacy of liberty” is the most important principle of America’s constitutional order. The Declaration of Independence, as an expression of that principle, is the Constitution’s lodestar, the guiding light that can help us strike the correct balance between majoritarian democracy and the sacred rights of the individual. In prosecuting his argument, Sandefur illustrates a largely imagined contest between what he calls “the States’ Rights Party and the Republican Party,” a deep disagreement on the fundamental values of the country that saw the latter group attempt to realign the nation with the spirit of the Declaration by way of the Fourteenth Amendment. Perhaps counterintuitively, in this story, the centralizing, federal government-aggrandizing Republicans are the genuine guardians of the natural-rights tradition that gave rise to the Declaration and the Constitution. Sandefur wants to show that the Republican conception of the “nature and limits” of sovereignty represented a principled departure from that of the British constitution, and that the States’ Rights camp retained the flawed and despotic conception. Civil war was the predictable result of such a momentous breach.

Many libertarian readers will demur at Sandefur’s lionization of the Constitution and his picture of the Union victory as an abortive attempt to revive the spirit of the Founding. After all, if the Constitution had libertarian elements at all, then arguably they were easily and completely eclipsed by its apparent sanction of slavery. The outstanding abolitionist and editor of The Liberator, William Lloyd Garrison, famously called the Constitution “a covenant with death” and an “agreement with hell,” publicly burning copies and cursing the American Union. Likewise considering it a monument to the institution of slavery, Garrison’s fellow Christian nonresistant and abolitionist Henry C. Wright wrote, “The only cure for such a Constitution is its destruction — the only remedy for the evils of such a Union is its dissolution.” And though he had argued more than twenty years earlier that slavery was unconstitutional, the great libertarian lawyer Lysander Spooner boldly asserted that the Constitution had no binding authority, that the government it created was merely a gang of “robbers and murderers.” While today’s libertarians certainly need not be bound by their opinions, it is worth noting that it is exceedingly difficult to find a nineteenth-century libertarian of any importance or prominence who saw the Constitution of the United States as an even somewhat libertarian document. Almost to a man, the libertarian radicals of Spooner’s and Garrison’s time derided the Constitution as yet another in a long historical string of oppressive legal instruments, an expression of ruling-class values and interests. Whether the Constitution is a friend or foe of liberty, then, is not self-evident.

Sandefur’s plea for the Constitution is most persuasive in its argument that we should treat the Declaration not only as a part of the nation’s political history, but as an important legal document in its own right — indeed, as “the conscience of the Constitution.” The principles immortalized in the Declaration, Sandefur argues, should inform our interpretations of the Constitution, at last resolving the conflict between the “the nation’s founding principles of equality and liberty” and the “wolfish view that government has a basic right to rule.” Sandefur’s book is thus a powerful vindication of the idea that certain knowable and objectively defined values, in particular the Enlightenment philosophical traditional of natural rights, are essential to a proper understanding of the Constitution.

In a compact work of clear, coherent prose, he explodes the idea, tellingly shared by both conservatives and progressives, that there can be “no objectively ‘correct’ hierarchy” in ethics, that instead “rights are created by the state” through either arbitrary edict or popular vote. Sandefur demonstrates that this positivist way of thinking is essentially authoritarian, a lapse back into a benighted time before widespread acceptance of the vital concepts of natural rights and individual sovereignty. To argue that “rights” are merely privileges, granted by the state according to its discretion and subject to revocation at will, is to fall into a vicious infinite regress. Sandefur shows that in the absence of a presumption of individual liberty, one would be required in practice to prove not only that he has a particular right, but that he has a right to set forth his proof of that right. If we take it seriously, the old idea that rights come only from positive enactments of law requires what Tom G. Palmer called “an infinite hierarchy of power,” layers upon layers of enforcers able to threaten their subordinates.

The libertarian alternative, of course, is the acceptance of certain “prepolitical principles” as guideposts directing our statecraft. The principles of equality before the law and the natural, inalienable freedom of every individual are such guideposts, shaping our ideas about the proper role of government. In analogizing a just, proper government to a contractual agreement, Sandefur’s political philosophy recalls the ideas of radical thinkers such as Spooner and Benjamin Tucker, who rethought classical
social-contract theory by demanding that a governmental entity confine itself to actions compatible with the requirements of justice and the law of equal liberty. Spooner and Tucker believed, however, that if government were so confined, if it were a service provider only, then it would thereby cease to be a government at all — the state being defined by the fact that it exceeds its authority to protect and abuses its discretion.

It is, in any case, far from clear that the Framers wanted the government created by the Constitution to be a mere “arbitrator” and “security guard,” as Sandefur contends. More likely, the Framers wanted a strong federal government, empowered to do all kinds of things that have nothing to do with resolving disputes or protecting the kinds of negative rights that today’s libertarians advocate. As Richard Epstein writes, “[The] Constitution is not a libertarian document.” Furthermore, leaving the Framers aside, Sandefur’s generous esteem for the Republicans seems incongruous with his treatment of the Progressives, whom we should see as the Republicans’ successors. Sandefur sets up a rather baffling false choice between the States’ Rights Party, which advocated state sovereignty cynically (that is, only to protect the hideous crime of slavery) and the Republican Party, which represented the obviously absurd notion that “[political] union and protection for individual rights reinforced each other.” This is a version of the old Randian argument that a system of objective laws requires a single coercive monopoly, the authority of which must have no rivals. But it is a basic tenet of libertarian thought that political decentralism, exampled by the Constitution’s vertical federalism, is a disincentive to abuses of power, allowing people to vote with their feet and making centers of political authority less remote and, therefore, more accountable. It is hardly a coincidence that the wholesale rejection of individual rights has attended the growth and centralization of the federal government, overseen by both Progressives and their Republican antecedents. Theodore Roosevelt spoke truly in a speech delivered at a Lincoln Day banquet in 1913: “Lincoln and Lincoln’s supporters were emphatically the progressives of their day.” Repeatedly vilifying “reactionaries,” Roosevelt declared that “the Progressive movement of today and the Republican movement of 1854” are “fundamentally and basically alike.” Libertarians need not — and emphatically should not — side with either the Confederate crusaders for states’ rights or the Republican champions of the Union.

Nevertheless, The Conscience of the Constitution refreshingly dismantles the idea, prevalent among certain liberty-movement contingents, that the states’ rights theory and the secession of the Confederacy were inherently libertarian. Sandefur shows that, quite to the contrary, adherents of the states’ rights philosophy tended to embrace a view of state sovereignty fundamentally at odds with the libertarian idea of natural rights, a view that saw government as possessing an illimitable “right to obedience.” The book contrasts this view, the state as entitled to unlimited power, with the idea that government is, or at least should be, an agency of the popular will, its powers limited in scope and delegated through the consent of the people. Implicit in this proposition is the understanding that if government goes beyond its narrow mandate to protect the rights of citizens, if it becomes an instrument of oppression and violation, then its dictates no longer demand respect or obedience.

To restore proper respect for individual liberty, Sandefur argues, the judiciary must engage in meaningful judicial review of government actions. Progressives and legal positivists contradict themselves when they claim to reject all prescriptive, normative claims just as they express their commitment to the abstract idea that judges should defer to the will of the majority. Sandefur endorses a robust conception of judicial review that incorporates a defense of substantive due process, which, he notes, is “today one of the most controversial of all legal theories,” condemned by both the Left and Right. Substantive, as opposed to procedural, due process is the idea that the Due Process Clause not only requires certain procedural steps and forms, but also protects certain fundamental individual rights. Libertarian attorneys have lately been among the fiercest defenders of substantive due process as an integral aspect of America’s legal inheritance.

Indeed, Sandefur argues compellingly that the distinction between substantive and procedural due process is itself spurious, that the two are inseparable as a practical matter. “Form and substance,” he writes, “cannot be separated here any more than they can be in the realm of physical reality.” For a directive to be law in the first place, it must accord with a formula that entails both procedural and substantive requirements, heeding the unspoken limits that are implied in every law or legal instrument. Certain contractual terms, for example, are invalid as a matter of law — voided automatically even if the parties consent to them. Sandefur maintains that the Constitution is no different, its implied limits and provisions being supplied by the Declaration’s “foundation of equal liberty.” If we accept Sandefur’s argument about the legal, interpretive connection between the Declaration and the Constitution, then substantive due process is plainly not just judges “making it up,” engaging in irresponsible judicial activism to undermine policy objectives they find distasteful. It is rather a legitimate and important aspect of a proper review of constitutionality.

Ironically, The Conscience of the Constitution is at its strongest not in its novel legal theories, but in its neat defenses of objective individual rights, immutable and logically inherent in the nature of men as rational, sentient entities. Sandefur accurately shows the Progressive Era as a revival of old-time authoritarianism, under which the state, rather than the individual, is the final reality, the only sacred, inviolable sovereign actor in society. The historically confused attempt to square the circle, to make the Party of Lincoln a stronghold of limited-government liberalism, detracted from the appealing argument that the Declaration of Independence is genuine law. Righteous hatred of the Confederacy should never tempt libertarians into awkward apologies for the Union — or for political centralism generally. Downplaying the Constitution’s vertical federalism (arguably its defining feature) and looking to the federal judiciary to be the great champion of individual liberty is unlikely to avail libertarians and will almost certainly yield unlooked-for results. As alluring as The Conscience of the Constitution’s historical narrative is, the establishment of American politics and government has given today’s libertarians few real heroes. Still, Sandefur’s book undoubtedly offers lawyers and legal scholars food for thought and will, with any luck, help to lure the profession and the judiciary away from the progressivism that has so long dominated.

This article was originally published in the February 2016 edition of Future of Freedom.

David S. D'Amato is a policy advisor at the Future of Freedom Foundation, an attorney, and an adjunct law professor. He is also a regular contributor at the Cato Institute's Libertarianism.org and a policy advisor at the Heartland Institute. His writing has been featured at public policy organizations such as the Institute for Economic Affairs, the Centre for Policy Studies, and the Foundation for Economic Education, and in popular media such as Forbes, Investor's Business Daily, Newsweek, and RealClearPolicy.